52:0992(103)AR - - AFGE Local 2408 and VA Medical Center, San Juan, PR - - 1997 FLRAdec AR - - v52 p992

[ v52 p992 ]
The decision of the Authority follows:

52 FLRA No. 103





LOCAL 2408










February 27, 1997


Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Lloyd L. Byars filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.

The Arbitrator sustained the Agency's disciplinary action against the grievant. For the following reasons, we remand the case to the parties for submission to the Arbitrator for a clarification of the basis of the award.

II. Background and Arbitrator's Award

The grievant, a registered nurse, left work during the middle of his shift after being notified that he was being transferred to another unit of the hospital. The grievant requested sick leave 2.5 hours later. The next day the grievant did not report to work, but did contact an Agency representative 6.25 hours later to request sick leave for two weeks. The grievant later provided two doctor's notes indicating he was incapacitated on both days and would require two weeks sick leave. The Agency charged the grievant 8.75 hours absent without leave (AWOL). It proposed to reprimand the grievant for AWOL, as well as for abandonment of the work area without proper authorization.

The grievant was reprimanded pursuant to the charges set forth above. The Union contested the reprimand. The Union and Agency were unable to come to a resolution and the grievance was submitted to arbitration. The Arbitrator stated the issue as "Was the Reprimand issued for just cause?" Award at 3.

The Arbitrator concluded that the Agency did have just cause to suspend the grievant. The Arbitrator found that the grievant left work in the middle of his shift without giving a reason and without asking for sick leave. He found that there was no excuse for the grievant's failure to call his supervisor the next day and notify her that he would not be reporting for his shift. He also found that the grievant had not demonstrated that his illness or any other circumstance prevented his properly requesting leave. The Arbitrator therefore concluded that it was reasonable for the Agency to find that the grievant did not have an acceptable reason for his delay in obtaining permission to be absent, as required by section 7.10 of Agency regulation DM&S Supplement MP-5 Part II, and to deny sick leave until properly requested by the grievant.(1) The Arbitrator also determined that the grievant's conduct warranted AWOL for the periods in question, as well as disciplinary action pursuant to VHA supplement, MP-5, which allows for a reprimand for the first offense of an unauthorized absence. Accordingly, the Arbitrator denied the grievance.

III. Exceptions

A. Union's Contentions

The Union argues that the award is contrary to law, rule, and regulation. The Union contends that the award is contrary to Sections 7.06(b)(2)(2) and 7.10 of Agency regulation DM&S Supplement MP-5, Part II, Chapter 7. The Union argues that, contrary to the Arbitrator's findings, the grievant did request leave at the earliest practicable time. The Union further contends that the award is contrary to 5 C.F.R. § 630.401.(3) Finally, the Union claims that the award is deficient because it fails to draw its essence from Article XIV of the collective bargaining agreement.(4) As a remedy, the Union asks that the grievant be granted sick leave and that the reprimand be removed from the grievant's Official Personnel Folder.

In a separate motion, the Union requests that the Authority strike the Agency's opposition to the Union's exception on the ground that it was based on irrelevant documents. In the same motion, the Union argues that the Agency improperly applied title 5 regulations to the grievant, a title 38 employee.(5)

B. Agency's Opposition

The Agency contends that when the grievant failed to follow established procedures to request leave, the Agency proceeded to take appropriate action. It contends that it reprimanded the grievant for failing to follow established procedures and abandoning the work area without proper authorization. The Agency states that it does not question the validity of the medical certificate, arguing that the issue is not whether the grievant was incapacitated for duty but whether the grievant followed established procedures.

IV. Analysis and Conclusions

A. We Cannot Determine Whether the Award Is Deficient As Contrary to Law Because the Basis of the Arbitrator's Award Is Unclear

As the Union alleges that the Arbitrator's findings are contrary to law, we review those exceptions de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Custom Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)).

5 C.F.R. §§ 630.401-409 regulate sick leave, detailing when it may be granted, as well as the proper procedures for applying for it. In disciplinary cases involving AWOL the Authority has adopted the approach of the Merit Systems Protection Board (MSPB). U.S. Department of the Air Force, Robins Air Force Base, Warner Robins, Georgia and American Federation of Government Employees, Local 987, 41 FLRA 635, 639 (1991) (Warner Robins). Applying MSPB precedent, the Authority has held that an employee is entitled to sick leave when the employee submits administratively acceptable evidence of incapacity due to illness or injury. Id. at 639 (citing Atchley v. Department of the Army, 46 MSPR 297, 301 (1990) (Atchley)).(6) When an employee submits administratively acceptable evidence of incapacity prior to the agency's decision to discipline the employee, the agency may not charge the employee AWOL, but instead must credit the employee with sick leave for the full period. U.S. Department of Veterans Affairs, Medical Center, Hampton, Virginia and National Association of Government Employees, Local R4-17, 41 FLRA 642, 647 (1991). Accordingly, as an employee in such circumstances is entitled to the leave, no discipline can be sustained for AWOL during that period. Id. However, discipline may be imposed for a failure to follow proper procedures. Atchley, 46 MSPR at 301.

In this case, the grievant requested sick leave for the hours preceding his request and there is no question that he provided the Agency with administratively acceptable evidence of incapacitation. Further, there is no indication in the record that the grievant did not provide the Agency with this evidence prior to the decision to discipline him. Under these circumstances, the Agency could not reprimand the grievant on a charge of AWOL, and an award that sustained that reprimand would be deficient.

A review of the proposed reprimand indicates that, although the reprimand was imposed in part because the grievant was AWOL, it also encompassed a charge of failure to follow proper procedures in requesting sick leave. Agency Exhibit 1B. Thus, paragraph 1a states that the grievant left his work place for 2.5 hours without the proper authorization of his Patient Care Coordinator; paragraph 1b states that the next day the grievant failed to obtain authorization for 6.25 hours of leave, as required. A reprimand based on these charges would not violate 5 C.F.R. Part 630, as they are not based on a charge of AWOL.

However, it is unclear on what basis the Arbitrator determined that the reprimand was warranted. On the one hand, the Arbitrator's findings point to the grievant's failure to follow proper procedures. The Arbitrator found that the grievant did not request sick leave or obtain authorization for such leave until he had been away from work for several hours. Award at 6. The Arbitrator also found that the grievant failed to demonstrate that his illness or other circumstances prevented him from properly requesting leave. Id. at 7. Based on these findings, the Arbitrator concluded that management's action was appropriate under its regulation requiring that an employee obtain permission for an absence or account for the failure to do so. See note 1, above.

On the other hand, the Arbitrator identified the charge as AWOL. Thus, in determining that the reprimand was for just cause, the Arbitrator stated:

Not only does the Grievant's conduct warrant AWOL for the periods in question, but his behavior also warrants disciplinary action pursuant to VHA Supplement MP-5, which allows for a reprimand for the first offense of an unauthorized absence.

Award at 8.

As discussed above, when an employee has submitted adminis